DALLAS — The Oklahoma Supreme Court declined Monday to hear arguments in a lawsuit contending that the use of $101.7 million of highway tax revenues to balance the state’s fiscal 2012 budget was unconstitutional.

Oklahoma City attorney Jerry Fent filed the case with the court on June 8. Fent contended that the Oklahoma Constitution prohibited the transfer of the fuel tax revenue to state agencies that are not involved in the construction of road or bridges.

Article 10, Section 19 of the state’s constitution mandates that “no tax levied and collected for one purpose shall ever be devoted to another purpose.”

The order, signed by Chief Justice Steven Taylor, said the suit should be heard first by a lower court. Taylor said the high court did not have original jurisdiction in the case. The other eight justices concurred.

Fent said he is considering re-filing the case in an Oklahoma County district court, but may run out of time before the $6.5 billion state budget goes into effect on ­Friday.

The Legislature approved the transfer of the highway funds to non-transportation agencies as one aspect of Gov. Mary Fallin’s plan to balance the fiscal 2012 budget.

The Oklahoma Department of Transportation will be compensated for the loss of the fuel tax revenues with proceeds from a $70 million bond issue authorized by the Legislature.

In oral arguments last week before a court referee, state solicitor general Patrick Wyrick said the transfer met all legal and constitutional requirements.

“What the Legislature did here was simply transfer existing tax revenues between funds in order to balance the budget,” Wyrick said. “The Supreme Court, since at least 1969, has recognized that is something that’s perfectly constitutional. The Supreme Court has been consistent in that regard, and there’s really not even a constitutional question.”

Wyrick said the shift was allowed under a balanced budget amendment approved by voters in 1941.

The bond proceeds will allow ODOT to continue its eight-year program to upgrade and maintain state roads and bridges. The department will also receive $35.7 million from the state transportation account established by the Legislature in 2010 to help finance road projects.

ODOT was set to receive $250.7 million in fiscal 2012 from the transportation fund, which is capped at $400 million, before the legislative diversion.

Oklahoma’s gasoline tax of 16 cent per gallon generated $302 million in fiscal 2010.

The diesel tax of 13 cents per gallon generated $108 million.

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